Submission by Community Law Centre (UWC) Prof Jaap de Visser Leah Cohen Land Use Management Bill

Essential role of LUMB Essential role of LUMB  Clarification of national, provincial and municipal roles  Rationalisation of laws on land use management  Focus of submission: constitutional roles and responsibilities

Difficulty: overlapping responsibilities Constitution produces two types of overlap: Constitution produces two types of overlap:  Overlap between functions in Schedules  Supervisory overlap wrto local government

Overlap between functions Four functions on land use Schedule 4B: “Municipal Planning” Schedule 4B: “Municipal Planning” Schedule 5A: “Provincial Planning” Schedule 5A: “Provincial Planning” Schedule 4A: “Regional Planning and Development”, “Urban and Rural Development” Schedule 4A: “Regional Planning and Development”, “Urban and Rural Development” Ancillary functions: Schedule 4A: “Housing”, “Environment: etc.

Supervisory overlap Schedules 4B matters are “local government matters” Schedules 4B matters are “local government matters” But they are also provincial/national matters “to a limited extent” But they are also provincial/national matters “to a limited extent”  Nat/prov can legislate a framework for “municipal planning”  Not detail

Clarity on roles through definitions Clarity on roles through definitions “Municipal Planning” vs “Provincial Planning” not intended to be self- explanatory

How to get clarity on roles? Let courts pronounce Let courts pronounce  Courts are reluctant  Conflict-driven solution  Judgments limited to case at hand Administrative definitions Administrative definitions  Public scrutiny?

Legislative definitions Legislative definitions  Parliament best placed to define functions of Schedule 4  Broad policy process  Public scrutiny If Parliament does not define Schedule 4 functions  provinces have concurrent power and may adopt their own definition (conflict resolved in terms of 146 Constitution) If Parliament does not define Schedule 4 functions  provinces have concurrent power and may adopt their own definition (conflict resolved in terms of 146 Constitution)

Definition of “Municipal Planning” is most needed Definition of “Municipal Planning” is most needed  Subject to intersection by two spheres ito functional overlap  Additional intersection by supervision Guidance from existing judicial and administrative definitions Guidance from existing judicial and administrative definitions

Constitutional Court: Territorial principle Territorial principle Functional principle “what is appropriate to each sphere” Functional principle “what is appropriate to each sphere” “Appropriate to local government” “Appropriate to local government”  Developmental local government  Control over local spaces/the built- environment

Municipal Demarcation Board’s definition of “Municipal Planning” Integrated Development Planning; Integrated Development Planning; (district) IDP framework; and (district) IDP framework; and (local): Development and implementation of a town planning scheme or land use management scheme for the municipality including administration of development applications in terms of special consents and rezonings. (local): Development and implementation of a town planning scheme or land use management scheme for the municipality including administration of development applications in terms of special consents and rezonings.

District/local division Bill: both district and local adopt land use schemes, district decides cross- boundary applications within district Bill: both district and local adopt land use schemes, district decides cross- boundary applications within district Inconsistent with division of powers between district and local in terms of Municipal Structures Act: Inconsistent with division of powers between district and local in terms of Municipal Structures Act:  S 84(1)(a): district adopts IDP and IDP framework for district  rest of the “Municipal Planning” function remains with local municipality (s 84(2))

District/local tension is key pressure point in system of local government District/local tension is key pressure point in system of local government Two tier system is under review ito Policy Review of Provincial and Local Government Two tier system is under review ito Policy Review of Provincial and Local Government

S 36 Jurisdiction of Land Use Regulators 1. S 36(c)(i) and(ii) are cumulative (cross-boundary AND provincial interest) who decides cross-boundary applications where no provincial interest is involved?

S 36 Jurisdiction of Land Use Regulators 2. “provincial interest”  Linked to PGDS  legally undefined policy instrument  “amongst other things”  “or similar instruments”  Rather: give specific content to provincial function “Regional planning and development”, “Environment” etc. Blank cheque for provinces to determine their involvement

3. No voice for municipalities affected by cross-boundary application  (Same status as affected citizens) Similar arguments for definition of “national interest” Similar arguments for definition of “national interest”

S 73 Intervention – conflict with s 139 Constitution S 139: national executive may intervene only- S 139: national executive may intervene only- if provincial executive fails; AND municipal failure relates to specific financial interventions Bill: “after consulting provincial government and in the public interest” Bill: failure “in terms of this Act” or “in housing matters”

Thank You